Herskovic v. Verizon Wireless

BD ee Haat

IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT MAR @ 2600 x

EASTERN DISTRICT OF NEW YORK

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YEHUDA HERSKOVIC,

Plaintiff, ; .

. . MEMORANDUM

- against — : .

DECISION AND ORDER

VERIZON WIRELESS, * 1:19-CV-3372 (AMD) (RML)

Defendant. ,

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ANN M. DONNELLY, United States District Judge:

In March of 2019, the pro se plaintiff brought this wrongful debt collection practices

action against Verizon Wireless.! (ECF No. 2.) The defendant removed the case to this court

and moved to compel arbitration and stay the action. (ECF No. 13.) Ina January 23, 2020

Report and Recommendation, the Honorable Robert M. Levy recommended that I grant the

defendant’s motion. (ECF No. 25.) The plaintiff filed an objection. (ECF No. 27.) For the

reasons set forth below, I adopt Magistrate Judge Levy’s well-reasoned opinion, grant the

defendant’s motion to compel arbitration and stay the action.

BACKGROUND

The plaintiff, the defendant’s former customer, alleges that the defendant charged him a

$176 disconnection fee that the company had previously agreed to waive. (ECF No. 2-2 at 4.)

The plaintiff first activated his Verizon account in April of 2014. (ECF No. 13-4 at 1-2.) As part

of his purchase, he accepted the terms of a customer agreement by signing a customer receipt.

(Id.) The agreement provides that the parties “agree to resolve disputes only by arbitration[,]”

and that the agreement would be governed by the Federal Arbitration Act.? (ECF No. 13-5 at 4.)

' The defendant identifies itself as Cellco Partnership d/b/a Verizon Wireless. (ECF No. 13-1 at 1.)

? The plaintiff subsequently signed at least one additional customer receipt—generated December 8,

> 20:16—in which he again agreed to the arbitration provision. GECF Nos. 18-2, 18-3.)

In December of 2017, the plaintiff signed an additional contract for home phone service.

(ECF No. 2-2 at 3.) He started having problems about a month later—calls would drop and

people had trouble hearing him—which the defendant could not fix. (/d.) He decided to cancel

the service. (/d.) Although a customer service supervisor allegedly agreed to waive the

disconnection fee, the company charged him anyway. (/d. at 4.) When he refused to pay, the

company sent the debt to multiple collection companies, which in turn inundated the plaintiff

with letters and calls. (/d.) The charge damaged his credit. (Jd.)

The plaintiff brought this claim in March of 2019. (ECF No. 2-2.) The defendant

removed the case to this court, and moved to compel arbitration and stay the case, asserting that

the action was subject to arbitration per the customer agreement. (ECF No. 13.)

In his Report and Recommendation, Judge Levy concluded that the parties “consented to

a broad agreement to arbitrate and [that the] plaintiff... failed to overcome the strong

presumption of arbitrability that attaches to such agreements[.]” (ECF No. 25 at 6.)

Additionally, he recommended that I grant the defendant’s application to stay the action. (/d.)

STANDARD OF REVIEW

A district court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A party’s

objections must be specific; where a party “makes only conclusory or general objections, or

simply reiterates [the] original arguments, the Court reviews the [rJeport and [r]ecommendation

only for clear error.” Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting

Barratt v. Joie, No. 96-CV-324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)). The district

judge must evaluate proper objections de novo and “may accept, reject, or modify the

recommended disposition.” Fed. R. Civ. P. 72(b)(3).

“[E]ven in a de novo review of a party’s specific objections, [however,] the court will not

consider ‘arguments, case law and/or evidentiary material which could have been, but were not,

presented to the magistrate judge in the first instance.’” Brown v. Smith, No. 09-CV-4522, 2012

WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02-CV-1776. 2006

WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)) (alterations omitted).

A pro se party’s objections are “generally accorded leniency” and construed “to raise the

strongest arguments that they suggest.” Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131,

at *2 (S.D.N.Y. Sept. 26, 2008) (internal quotation marks and citations omitted). “Nonetheless,

even a pro se party’s objections to a Report and Recommendation must be specific and clearly

aimed at particular findings in the magistrate’s proposal, such that no party be allowed a second

bite at the apple by simply relitigating a prior argument.” Pinkney v. Progressive Home Health

Serv., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (internal quotation

marks and citation omitted).

DISCUSSION

The plaintiff makes three arguments: that he did not agree to arbitration, that the Federal

Arbitration Act does not apply to the agreement, and that the defendant waived arbitration by

removing the case to federal court. (ECF No. 27 at 1-3.) The defendant responds that the Court

should not consider these arguments because the plaintiff did not raise them before Judge Levy.

(ECF No. 28.) In any event, the defendant says that the plaintiff's objections are meritless. (/d.)

Even construing the plaintiff's pro se objections liberally, he did not raise two of his

claims—that the Federal Arbitration Act does not apply, and that the defendant waived

arbitration—before Judge Levy. “[T]he Court is only obliged to review the Report for clear

error.” Pall Corp., 249 F.R.D. at 51. Nevertheless, because the plaintiff is representing himself,

I consider his objections de novo. I conclude that Judge Levy’s report and recommendation was

correct, and I adopt it in its entirety.

I. General Standard

A court deciding a motion to compel arbitration applies a standard “similar to that

applicable for a motion for summary judgment.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d

Cir. 2017) (citation omitted). The Court “consider[s] all relevant, admissible evidence submitted

by the parties and contained in ‘pleadings, depositions, answers to interrogatories, and

admissions on file, together with . . . affidavits,” Chambers v. Time Warner, Inc., 282 F.3d 147,

155 (2d Cir. 2002) (quoting Fed. R. Civ. P. 56(c)) (second alteration in original), and draws all

reasonable inferences in favor of the non-moving party. Nicosia v. Amazon.com, 834 F.3d 220,

229 (2d Cir. 2016). I consider the plaintiff's signed customer receipts and agreements, which the

defendant submitted with its motion to compel arbitration.

Il. Validity of Agreement

“Ordinary principles of contract . . . determine which parties are bound by an agreement

to arbitrate.” Bankers Conseco Life Ins. Co. v. Feuer, No. 16-CV-7646, 2019 WL 1353279, at

*6 (S.D.N.Y. Mar. 15, 2018) (citing Fisser v. Int’l Bank, 282 F.2d 231, 235 (2d Cir. 1960)).

Like other contracts, an arbitration agreement may be invalidated by “generally applicable

contract defenses, such as fraud, duress, or unconscionability.” Rent-A-Center, West, Inc. v.

Jackson, 561 U.S. 63, 68 (2010) (citing Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681,

687 (1996)). A forged signature generally renders a contract void. Opals on Ice Lingerie v.

Bodylines Inc., 320 F.3d 362, 370 (2d Cir. 2003).

The plaintiff maintains that he did not sign the 2014 and 2016 customer receipts, and that

the customer agreements are “false documents” with “false signatures.” (No. 27 at 3-4.)

“[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not

defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). An

“opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous,

gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely

suspicions.” Contemporary Mission v. United States Postal Serv., 648 F.2d 97, 107 n.14 (2d Cir.

1981) (internal citations and quotation marks omitted). The plaintiff's claim, which is not

supported by any evidence, is insufficient to create a genuine issue of material fact. After all, the

plaintiff admits that he signed multiple contracts with the company, and he was a Verizon

customer for the period covered by the signed agreements. (ECF Nos. 1 at 1; 14 at 1.) In short,

there is no credible evidence that the records that the defendant produced are forgeries or

otherwise false. Accordingly, Judge Levy’s conclusion that the “plaintiff accepted the terms of

the [cJustomer [a]greement on at least two separate occasions over more than four years of

service with Verizon Wireless” was correct. (ECF No. 25 at 5.)

Equally unimpressive is the plaintiff's claim that the agreements do not govern the

December 2017 purchase underlying the disputed charge. (No. 27 at 3-4.) “[A] broad arbitration

clause in an agreement survives and remains enforceable for the resolution of disputes arising out

of that agreement subsequent to the termination thereof and the discharge of obligations

thereunder ....” Eisen v. Venulum Ltd., 244 F. Supp. 3d 324, 333 (W.D.N.Y. 2017) (citation

omitted). The arbitration clause in the customer agreement covers “any dispute that in any way

relates to or arises . . . from any equipment, products and services [the plaintiff] receive[d] from

[Verizon Wireless].” (ECF Nos. 13-5 at 4; 18-3 at 7.) As Judge Levy determined, this language

“is sufficiently broad to create a strong presumption of arbitrability” (ECF No. 25 at 5),

including over services he later purchased in 2017.

III. Federal Arbitration Act

Next, the plaintiff argues that the Federal Arbitration Act does not apply because this is

not a maritime action involving commerce. (ECF No. 27 at 3.) But the Act is not limited to

maritime actions. On the contrary, it provides that arbitration agreements “evidencing a

transaction involving commerce . . . shall be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The statute

establishes a “liberal federal policy favoring arbitration agreements.” CompuCredit Corp. v.

Greenwood, 565 U.S. 95, 98 (2012); see also Buckeye Check Cashing, Inc. v. Cardegna, 546

U.S. 440, 443 (2006) (The FAA “embodies the national policy favoring arbitration and places

arbitration agreements on equal footing with all other contracts”).

The parties’ agreements reference the statute explicitly, providing that “[tJhe Federal

Arbitration Act applies to this agreement.” (ECF Nos. 13-5 at 4; 18-3 at 7.) Unfair debt

collection and credit reporting claims are unquestionably covered by the Act. See DeGraziano v.

Verizon Comms, Inc., 325 F. Supp. 2d 238, 243 (E.D.N.Y. 2004) (“[T]he plaintiff's claims that

Verizon Wireless violated the FCRA arise out of and are related to the [customer service

agreement]” and are “presumptively arbitrable.”); see also Biggs v. Midland Credit Mgmt., No.

17-CV-340, 2018 WL 1225539, at 5 n.4 (E.D.N.Y. Mar. 9, 2018) (FDCPA acts are arbitrable)

(citation omitted). Accordingly, Judge Levy correctly applied the Federal Arbitration Act.

IV. Waiver

Finally, the plaintiff says that the defendant waived arbitration by removing the case to

federal court which, according to the plaintiff, constituted protracted participation in litigation.

(ECF No. 27 at 1-2.) The “waiver of the right to arbitration is not to be lightly inferred,” and the

determination “is not susceptible to bright line rules.” Galeana v. Mahasan Inc., No. 14-CV-

3625, 2019 WL 3024588, at *4 (S.D.N.Y. July 11, 2019) (citation omitted). Courts determining

whether a party has waived arbitration consider “(1) the time elapsed from the commencement of

litigation to the request for arbitration; (2) the amount of litigation (including exchanges of

pleadings, any substantive motions, and discovery); and (3) proof of prejudice, including taking

advantage of pre-trial discovery not available in arbitration, delay, and expense.” Jd. (citations

omitted).

“[T]he mere act of removing [a] claim from state to federal court is hardly the sort of

aggressive participation in litigation” that constitutes waiver. Gonder v. Dollar Tree Stores, Inc.,

144 F. Supp. 3d 522, 529 (S.D.N.Y. 2015) (citation omitted). The defendant removed the case to

federal court within about two months of service and moved to compel arbitration a month later.

With the exception of the customer receipts and customer agreements, the parties have not

engaged in significant discovery or motion practice. Moreover, the plaintiff has not

demonstrated any prejudice resulting from being ordered to arbitrate his claims.

Accordingly, Judge Levy correctly concluded that “the parties have consented to a broad

agreement to arbitrate and [the] plaintiff has failed to overcome the strong presumption of

arbitrability that attaches to such agreements[.]” (ECF No. 25 at 6.)

CONCLUSION

The defendant’s motion to compel arbitration is granted. The action is stayed pursuant to

section 3 of the Federal Arbitration Act.? The parties must provide a status report by July 24,

2020.

3 The defendant requested a stay. (ECF No. 13-1 at 9-10.) Accordingly, the court is required to stay the

proceedings pending the outcome of the arbitration. See Katz v. Cellco P'ship, 794 F.3d 341, 345 (2d Cir.

2015) (“[T]he FAA mandate[s] a stay of proceedings when all of the claims in an action have been

referred to arbitration and a stay [is] requested.”).

SO ORDERED.

s/Ann M. Donnelly

Ani M. Donnelly

United States District Judge

Dated: Brooklyn, New York

March 6, 2020